Cole vs Knipp, et al

Filing 37

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/9/15 ORDERING that Plaintiffs request to proceed in forma pauperis (ECF Nos. 6 , 8 ) is granted. Plaintiff shall pay the statutory filing fee of $350. The complaint (and the intended ame ndments thereto, see ECF Nos. 1 , 4 , 5 , 7 , 9 , 10 , 11 , 16 , 17 , 19 , 20 , 24 , 25 , 26 , 30 , 31 , 32 , 33 , 34 , 35 ), is DISMISSED with leave to amend within 30 days. Plaintiffs requests for appointment of counsel (ECF Nos. 12 , 18 , 21 , 22 , 27 , and 28 ) are DENIED. Clerk of the Court shall terminate all outstanding motions.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEFFREY COLE,

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Plaintiff,

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No. 2:14-cv-1898-EFB P

v.
KNIPP, Warden, et al.,

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ORDER GRANTING IFP AND DISMISSING
COMPLAINT WITH LEAVE TO AMEND
PURSUANT TO 28 U.S.C. § 1915A

Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983.1 In addition to filing a complaint, plaintiff has filed an application to proceed in

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forma pauperis pursuant to 28 U.S.C. § 1915. He has also filed no fewer than fourteen requests to

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amend or otherwise supplement his complaint and seven requests for appointment of counsel.

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His numerous requests are accompanied by hundreds of miscellaneous exhibits and attachments.

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I.

Request to Proceed In Forma Pauperis
Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2).

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Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect

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and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C.

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§ 1915(b)(1) and (2).

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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
§ 636(b)(1) and is before the undersigned pursuant to plaintiff’s consent. See E.D. Cal. Local
Rules, Appx. A, at (k)(4).
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II.

Requirement and Standards

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Federal courts must engage in a preliminary screening of cases in which prisoners seek

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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion

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of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which

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relief may be granted,” or “seeks monetary relief from a defendant who is immune from such

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relief.” Id. § 1915A(b).

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A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a)
of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and

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plain statement of the claim showing that the pleader is entitled to relief, in order to give the

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defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)).

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While the complaint must comply with the “short and plaint statement” requirements of Rule 8,

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its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556

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U.S. 662, 679 (2009).

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To avoid dismissal for failure to state a claim a complaint must contain more than “naked

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assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of

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action.” Twombly, 550 U.S. at 555-557. In other words, “[t]hreadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at

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678.

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Furthermore, a claim upon which the court can grant relief must have facial plausibility.

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Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

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content that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a

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claim upon which relief can be granted, the court must accept the allegations as true, Erickson v.

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Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the

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plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

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III.

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Screening Order
It appears from plaintiff’s excessive filings that he wishes to amend or add to his

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complaint in a piecemeal fashion through separate filings. This, however, is not the proper

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procedure for amending a complaint.2 Plaintiff may not amend his complaint in a piecemeal

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fashion by filing separate documents that are intended to be read together as a single complaint.

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If plaintiff wishes to add, omit, or correct information in the operative complaint, he must file an

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amended complaint that is complete within itself. This is because an amended complaint

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supersedes any earlier filed complaint, and once an amended complaint is filed, the earlier filed

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complaint no longer serves any function in the case. See Forsyth v. Humana, 114 F.3d 1467,

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1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter being treated

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thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)). Plaintiff’s

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complaint (and the intended amendments thereto) is therefore dismissed with leave to amend in

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accordance with the requirements set forth in this order.

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When a plaintiff is allowed to amend his complaint, he must write or type the amended

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complaint so that it is complete in itself without reference to any earlier filed complaint. L.R.

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220. That is, plaintiff must file a single amended complaint that includes all information relevant

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to his claim(s).

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Any amended complaint shall clearly set forth the claims and allegations against each

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defendant, and must identify as a defendant only persons who personally participated in a

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substantial way in depriving plaintiff of a federal constitutional right. Johnson v. Duffy, 588 F.2d

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740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if

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he does an act, participates in another’s act or omits to perform an act he is legally required to do

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that causes the alleged deprivation). Any amended complaint must also contain a caption

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including the names of all defendants. Fed. R. Civ. P. 10(a).

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In addition, plaintiff is hereby informed that the court is not a repository for his evidence
and he shall not file documentary evidence in support of his claims unless it is necessary for the
resolution of a motion.
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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1)

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that a right secured by the Constitution or laws of the United States was violated, and (2) that the

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alleged violation was committed by a person acting under the color of state law. West v. Atkins,

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487 U.S. 42, 48 (1988). An individual defendant is not liable on a civil rights claim unless the

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facts establish the defendant’s personal involvement in the constitutional deprivation or a causal

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connection between the defendant’s wrongful conduct and the alleged constitutional deprivation.

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See Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989); Johnson v. Duffy, 588 F.2d 740, 743-44

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(9th Cir. 1978).

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Plaintiff is cautioned that he not join unrelated claims against different defendants in a

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single complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). The controlling principle

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appears in Fed. R. Civ. P. 18(a): ‘A party asserting a claim . . . may join, [] as independent or as

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alternate claims, as many claims . . . as the party has against an opposing party.’ Thus multiple

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claims against a single party are fine, but Claim A against Defendant 1 should not be joined with

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unrelated Claim B against Defendant 2. Unrelated claims against different defendants belong in

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different suits, not only to prevent the sort of morass [a multiple claim, multiple defendant] suit

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produce[s], but also to ensure that prisoners pay the required filing fees-for the Prison Litigation

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Reform Act limits to 3 the number of frivolous suits or appeals that any prisoner may file without

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prepayment of the required fees. 28 U.S.C. § 1915(g).” George v. Smith, 507 F.3d 605, 607 (7th

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Cir. 2007).

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Although plaintiff’s allegations are held to “less stringent standards than formal pleadings

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drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam), plaintiff is

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required to comply with the Federal Rules of Civil Procedure and the Local Rules of the Eastern

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District of California. See McNeil v. United States, 508 U.S. 106, 113 (1993) (procedural

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requirements apply to all litigants, including prisoners lacking access to counsel); L.R. 183(a)

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(“Any individual representing himself or herself without an attorney is bound by the Federal

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Rules of Civil or Criminal Procedure, these Rules, and all other applicable law.”).

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IV.

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Requests for Appointment of Counsel
Plaintiff requests that the court appoint counsel. District courts lack authority to require

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counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney

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to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935

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F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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When determining whether “exceptional circumstances” exist, the court must consider the

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likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro

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se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970

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(9th Cir. 2009). Having considered those factors, the court finds there are no exceptional

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circumstances in this case.

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V.

Summary of Order

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s request to proceed in forma pauperis (ECF Nos. 6, 8) is granted.

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Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in accordance

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with the notice to the Director of the California Department of Corrections and Rehabilitation

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filed concurrently herewith.

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2.

The complaint (and the intended amendments thereto, see ECF Nos. 1, 4, 5, 7, 9,

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10, 11, 16, 17, 19, 20, 24, 25, 26, 30, 31, 32, 33, 34, 35), is dismissed with leave to amend within

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30 days. The amended complaint must bear the docket number assigned to this case and be titled

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“First Amended Complaint.” Failure to comply with this order may result in this action being

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dismissed for failure to prosecute. If plaintiff files an amended complaint stating a cognizable

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claim the court will proceed with service of process by the United States Marshal.

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3.

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28) are denied.

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Plaintiff’s requests for appointment of counsel (ECF Nos. 12, 18, 21, 22, 27, and

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4. The Clerk of the Court shall terminate all outstanding motions.
Dated: March 9, 2015.

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